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Issued  October  12,  1909. 


U.  S.  DEPARTMENT  OE  AGRICULTURE, 

OFFICE  OF  THE  SOLICITOR. 

GEO.  P.  McCABE,  Solicitor. 


THE  TWENTY-EIGHT  HOUR  LAW 
ANNOTATED 


ACT  OF  CONGRESS  APPROVED  JUNE  29,  1906, 
C.  3594,  34  STAT.  607. 


WASHINGTON: 
GOVERNMENT  PRINTING  OFFICE. 

1909, 


LETTER  OE  TRANSMITTAL. 


U.  S.  Department  of  Agriculture, 

Office  of  the  Solicitor, 
M^ashington^  D.  G October  1909. 

Sir:  I recommend  the  publication  of  tlie  manuscript  transmitted 
herewith,  which  is  an  annotation  of  the  act  of  Congress  approA^ecl 
June  29,  1906,  commonly  knoAAm  as  the  “ Twenty-eight  Hour  LaAv.” 

This  annotation  has  been  prepared  under  iny.  direction  by  Mr.  Otis 
H.  Gates,  Mr.  lY.  Parker  Jones,  and  Mr.  K.  W.  AYilliams,  jr.,  laAv 
clerks  of  this  Office. 

It  is  belieA^ed  that  this  publication  aauII  be  of  material  help  to 
officers  of  the  GoA^ernmcnt  interested  in  the  trial  of  cases  under  the  act. 

Kespect  fully, 


Geo.  V.  McCabe, 


Solicitor, 


Hon.  James  Wilson, 

Secretary  of  Agriculture, 


2 


7 f!  r ; 

ri'i.'s 


INTRODUCTION. 


The  original  act  of  Congress  to  prevent  cruelty  to  animals  in 
interstate  transit  by  common  carriers  was  passed  by  the  Forty-second 
Congress,  third  session,  and  approved  by  the  President  on  March  3, 
1873  (17  Stat.  SSd).  This  act  was  incorporated  in  the  Eevised  Stat- 
utes of  the  United  States,  first  edition,  as  sections  4386  to  4390,  in- 
clusive. Comparatively  few  cases  went  to  trial  under  this  statute, 
and  it  was  repealed  and  supplanted  by  the  present  law,  commonly 
known  as  the  “ Twenty-eight  Hour  Law,”  which  was  approved  and 
became  effective  on  June  29,  1906  (34  Stat.  607). 

Since  the  present  statute  has  been  in  effect  a great  number  of  cases 
reported  by  the  Department  of  Agriculture  to  the  Department  of 
Justice  for  prosecution  have  been  tried  in  the  courts,  and  reports  of 
some  of  these  cases  now  appear  in  the  volumes  of  the  Federal  Ke- 
porter.  The  Department  of  Agriculture  has  made  a practice  of 
publishing,  in  a series  of  circulars,  decisions  of  the  courts  in  cases 
involving  salient  points  of  the  statute,  for  the  use  and  information 
of  officers  of  the  Department,  of  common  carriers,  and  of  the  United 
States  courts  and  district  attorneys.  Many  of  the  cases  are  in  accord 
as  to  leading  questions  of  construction  of  the  statute.  The  decisions 
published  in  the  Federal  Eeporter  and  the  circulars  of  the  Depart- 
ment have  now  reached  considerable  volume.  The  purpose  of  this 
annotation  is  to  bring  this  material  together  in  brief  form  and  to 
furnish  a convenient  means  of  reference  to  these  decisions  of  the 
courts  construing  the  various  parts  of  the  statute. 

This  publication  contains  the  “ Twenty-eight  Hour  Law  ” anno- 
tated with  brief  abstracts  from  the  decisions  of  the  federal  courts  in 
cases  that  have  been  prosecuted  under  the  act  since  it  went  into  effect 
and  up  to  the  present  time,  including  also  abstracts  from  five  cases 
and  an  opinion  of  the  Attorne3^-General  of  the  United  States  under 
sections  4386-4390  of  the  Eevised  Statutes  of  the  United  States, 
which  are  deemed  to  apph^  also  to  the  present  Twenty-eight  Hour 
Law. 

. 3 


1 1 64660 


CONTENTS. 


Page. 

Text  of  Twenty-eight  Hour  Law  (act  of  June  29,  1906) 7 

Annotations 10 

Constitutionality A 10 

Purpose 11 

Parties  amenable 12 

Stockyard  companies  and  railways • 12 

Terminal  railroad  companies 12 

Lessees 12 

Carriers  in  general 12 

Venue 13 

“ Other  animals  ” 13 

“Knowingly” 14 

“Willfully” 15 

“Knowingly  and  willfully” 16 

“ Knowingly  and  willingly  ” 18 

Period  of  confinement 18 

“Accidental  or  unavoidable  causes  ” 19 

“Sheep” 20 

“ In  the  nighttime  ” 21 

Unloading  for  rest,  water,  and  feeding 21 

“ Properly  equipped  pens” 22 

Unit  of  violation 22 

Assessment  of  the  penalty 24 

Evidence 24 

Burden  of  proof 24 

Presumptions 25 

Rule  of  construction 26 

Thirty-six  hour  request 27 

Defenses 27 

Depositions • 27 

Writs  of  error 28 


5 


THE  TWENTY-EIGHT  HOUR  LAW 
ANNOTATED. 


TEXT  OF  TWENTY-EIGHT  HOUR  LAW  (ACT  OF  JUNE  29,  1906.) 

AN  ACT  To  prevent  cruelty  to  animals  while  in  transit  by  railroad  or  other 
means  of  transportation  from  one  State  or  Territory  or  the  District  of 
Columbia  into  or  through  another  State  or  Territory  or  the  District  of 
Columbia,  and  repealing  sections  forty-three  hundred  and  eighty-six,  forty- 
three  hundred  and  eighty-seven,  forty-three  hundred  and  eighty-eight,  forty- 
three  hundred  and  eighty-nine,  and  forty-three  hundred  and  ninety  of  the 
United  States  Revised  Statutes. 

Be  it  enacted  Jjy  the  Senate  and  House  of  Representatives  of  the 
United  States  of  Ameidca  in  Congress  assembled^  That  no  railroad, 
express  company,  car  company,  common  carrier^  ® other  than  by 
Avater,  or  the  receiATr,  trustee,  or  lessee-  of  any  of  them,  Avhose  road 
forms  any  part  of  a line  of  road  over  Avhich  cattle,  sheep,  swine, 
or  other  animals^  shall  be  conveyed  from  one  State  or  Territory 
or  the  District  of  Columbia  into  or  through  another  State^  or 
Territory  or  the  District  of  Columbia,  or  the  owners  or  masters  of 
steam,  sailing,  or  other  ATSsels  carrying  or  transporting  cattle,  sheep, 
SAvine,  or  other  animals  from  one  State  or  Territory  or  the  District  of 
Columbia  into  or  through  another  State  or  Territory  or  the  District 
of  Columbia,  shall  confine  ® the  same  in  cars,  boats,  or  vessels  of 
aii}^  description  for  a jicriod  longer  than  tAventy-eight  consecutive 
hours”  Avithout  unloading  the  same  in  a humane  manner,  into  prop- 
erly equipped  pens”  for  rest,  AAUiter,  and  feeding,®  for  a period  of  at 
least  five  consecutive  hours,  unless  prevented  by  storm  or  by  other 
accidental  or  unaAmidable  causes”  Avhich  can  not  be  anticipated  or 
avoided  by  the  exercise  of  due  diligence  and  foresight:  Provided^ 
That  upon  the  Avritten  request  of  the  OAvner  or  })erson  in  custody  of 
that  particular  shipment,  Avhicli  Avritten  request  shall  be  separate  and 
apart  from  any  printed  bill  of  lading,  or  other  railroad  form,  the 
time  of  confinement  may  be  extended  to  thirty-six  hours.^”  In  esti- 
mating^^ such  confinement,  the  time  consumed  in  loading  and  un- 
loading shall  not  be  considered,  but  the  time  during  Avhich  the 
animals  liav^e  been  confined  without  such  rest  or  food  or  Avater  on 
connecting  roads  shall  be  included,  it  being  the  inteiiT^  of  this  act 
to  prohibit  their  continuous  confinement  beyond  the  period  of  tAventy- 
eight  hours,  except  upon  the  contingencies  hereinbefore  stated:^® 


“ Figures  refer  to  cross  refereuces  given  on  luige  9. 


7 


8 


THE  TWENTY-EIGHT  HOUR  LAW  ANNOTATED. 


Provided,,  That  it  shall  not  be  required  that  sheep^^  be  unloaded  in 
the  nighttime,  but  where  the  time  expires  in  the  nighttime^^  in  case 
of  sheep  the  same  may  continue  in  transit  to  a suitable  place  for 
unloading,  subject  to  the  aforesaid  limitation  of  thirty-six  hours. 

Sec.  2.  That  animals  so  unloaded  shall  be  properly  fed  and  watered 
during  such  rest  either^®  by  the  owner  or  person  having  the  cus- 
tody thereof,  or  in  case  of  his  default  in  so  doing,  then  by  the  rail- 
road, exjDress  company,  car  company,  common  carrier  other  than  by 
water,  or  the  receiver,  trustee,  or  lessee  of  any  of  them,  or  by  the 
owners  or  masters  of  boats  or  vessels  transporting  the  same,  at  the 
reasonable  expense  of  the  oAvner  or  person  in  custody  thereof,  and 
such  railroad,  express  company,  car  company,  common  carrier  other 
than  by  Avater,  receiver,  trustee,  or  lessee  of  any  of  them,  owners  or 
masters,  shall  in  such  case  have  a lien  upon  such  animals  for  food, 
care,  and  custody  furnished,  collectible  at  their  destination  in  the 
same  manner  as  the  transportation  charges  are  collected,  and  shall 
not  be  liable  for  any  detention  of  such  animals,  Avhen  such  detention 
is  of  reasonable  duration,  to  enable  compliance  with  section  one  of 
this  act ; but  nothing  in  this  section  shall  be  construed  to  prevent  the 
oAvner  or  shij^jier  of  animals  from  furnishing  food  therefor,  if  he  so 
desires. 

Sec.  3.  That  any  railroad,  express  company,  car  company,  common 
carrier  other  than  by  Avater,  or  the  receiver,  trustee,  or  lessee  of  any  of 
them,  or  the  master  or  OAvner  of  any  steam,  sailing,  or  other  vessel  Avho 
knowingly^’’  and  willfully^®  fails  to  comply  with  the  provisions  of 
the  tAvo  preceding  sections  shall  for  cA^ery^®  such  failure  be  liable  for 
and  forfeit  and  pay  a penalty-*’  of  not  less  than  one  hundred  nor 
more  than  five  hundred  dollars:  Provided,,  That  Avhen  animals  are 
carried  in  cars,  boats,  or  other  vessels  in  Avhich  they  can  and  do  have 
proper  food,  Avater,  space,  and  opportunity  to  rest  the  provisions  in 
regard  to  their  being  unloaded  shall  not  apply. 

Sec.  4.  That  the  penalty  created  by  the  preceding  section  shall  be 
recovered  by  civiP^  action  in  the  name  of  the  United  States  in  the 
circuit  or  district  court  holdeii  Avithin  the  district^^  where  the  vio- 
lation may  have  been  committed  or  the  person  or  corporation  resides 
or  carries  on  business;  and  it  shall  be  the  duty  of  United  States  attor- 
neys to  prosecute  all  violations  of  this  act  reported  by  the  Secretaiy  of 
Agriculture,  or  which  come  to  their  notice  or  knoAvledge  by  other 
means. 

Sec.  5.  That  sections  forty-three  hundred  and  eighty-six,  forty- 
three  liundred  and  eighty-seA^en,  forty-three  hundred  and  eighty-eight, 
forty-three  hundred  and  eighty-nine,  and  forty-three  hundred  and 
ninety  of  the  Revised  Statutes  of  the  United  States  be,  and  the  same 
are  hereby,  repealed. 

Approved,  June  29,  1906. 


REFERENCES  TO  ANNOTATIONS. 


9 


(1)  See  Parties  Amenable,  p.  12;  Defenses,  notes  a,  &,  and  c,  p.  27. 

(2)  See  Parties  Amenable,  note  d,  p.  12. 

(3)  See  “Other  Animals,”  p.  13. 

(4)  See  Parties  Amenable,  notes  i,  j,  and  1c,  p.  13. 

(5)  See  Period  of  Confinement,  note  a,  p.  18. 

(6)  See  Parties  Amenable,  note  /,  p.  13;  “ Knowingly,”  notes  / and  g,  p.  14. 

(7)  See  “ Properly  Equipped  Pens,”  notes  a,  &,  c,  and  d,  p.  22;  “ Knowingly 
and  Willfully,”  note  h,  p.  16. 

(8)  See  Unloading  for  Rest,  Water,  and  Feeding,  p.  21. 

(9)  See  “Knowingly  and  Willfully,”  p.  16;  “Knowingly  and  Willingly,” 
p.  18;  “Accidental  or  Unavoidable  Causes,”  p.  19;  Evidence,  note  d,  p.  25. 

(10)  See  Constitutionality,  notes  J)  and  d,  p.  10;  Thirty-six  Hour  Request, 
p.  27. 

(11)  See  Period  of  Confinement,  notes  &,  c,  and  d,  p.  18;  “Knowingly,” 
notes  &,  c,  d,  and  e,  p.  14 ; Evidence,  note  j,  p.  25. 

(12)  See  Purpose,  p.  11.  ^ 

(13)  See  Defenses,  note  c,  p.  27. 

(14)  See  “ Sheep,”  p.  20. 

(15)  See  “In  the  Nighttime,”  p.  21. 

(16)  See  Unloading  for  Rest,  Water,  and  Feeding,  note  c,  p.  21. 

(17)  See  “ Knowingly,”  p.  14;  “ Knowingly  and  Willfully,”  p.  16;  “ Know- 
ingly and  Willingly,”  p.  18. 

(18)  See  “Willfully,”  p.  15;  “Knowingly  and  Willfully,”  p.  16. 

(19)  See  Unit  of  Violation,  p.  22. 

(20)  See  Assessment  of  the  Penalty,  p.  24. 

(21)  See  Evidence,  p.  24;  Rule  of  Construction,  p.  26;  Depositions,  p.  27; 
Writs  of  Error,  p.  28. 

(22)  See  Venue,  p.  13;  Constitutionality,  notes  a and  c,  p.  10. 

10374—09 2 


ANNOTATIONS. 


[Cases  decided  in  1907  and  subsequently  are  under  the  act  of  June  29,  190G 
(34  Stat.  GOTi.  Cases  decided  prior  to  1907  are  under  sections  4386-4390  K.  S. 
and  are  marked  below  with  an  asterisk.] 

CONSTITUTIONALITY. 

a.  Since  an  action  against  an  interstate  carrier  for  violation  of  the 
statute  is  a civil  action  to  recover  a penalti^,  section  L,  anthorizing  such 
action  to  be  brought  in  the  district  Avhere  the  violation  may  have  been 
committed  or  the  person  or  corporation  resides  or  carries  on  business, 
is  not  unconstitutional  as  a violation  of  the  Sixth  Amendment  to  the 
Federal  Constitution. 

Southern  Pacific  Co.  v.  U.  S.,  171  Fed.  364.  (C.  C.  A.,  1909.) 

1).  The  provision  of  the  statute  authorizing  the  owner  or  person  in 
custody  of  a shipment  of  live  stock  to  extend  the  time  of  confinement 
to  thirty-six  hours  is  not  such  a delegation  of  legislative  power  as 
renders  the  law  unconstitutional. 

Southern  Pacific  Co.  r.  U.  S..  171  Fed.  360.  (C.  C.  A.,  1909.)  Circular  No. 

23,  Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  An  action  under  the  Twenty-eight  Hour  Law,  as  provided  in  its 
fourth  section,  may  lawfully  be  brought  and  tried  in  the  district 
wherein  the  defendant  resides  or  carries  on  business.  This  provision 
of  the  laAv  is  not  in  conflict  Avith  section  2 of  article  3 of  the  Constitu- 
tion, nor  Avith  the  Sixth  Amendment  thereto. 

St.  Louis  & San  Francisco  R.  Co.  r.  U.  S.,  169  Fed.  69.  (C.  C.  A.,  1909.) 

Circular  No.  17,  Oflice  of  the  Solicitor,  Department  of  Agriculture. 

cZ.  The  provision  in  the  statute  that  live  stock  in  transit  may  be 
continued  up  to  thirty-six  hours  at  the  written  request  of  the  shipper 
does  not  constitute  a delegation  of  legislatii^e  power  or  authority  to 
the  owner  or  shipper,  and  the  act  is  not  thereby  made  unconstitutional. 

U.  S.  V.  Oregon  Railroad  & NaA’igation  Co.,  163  Fed.  640  (1908).  Circular 
No.  8,  Oflice  of  the  Solicitor,  Department  of  Agriculture. 

e.  It  is  competent  for  Congress  to  provide  for  recoA^ery  of  penalties 
imposed  for  Adolation  of  a statute  either  by  a criminal  or  a cIauI  action. 

V.  S.  V.  Chicago  North  Western  R.  Co.  (1908).  Circular  No.  5,  Oflice  of 
the  Solicitor,  Department  of  Agriculture. 

10 


CONSTITUTIONALITY PURPOSE. 


/.  * The  statute  (secs.  4386-4390  R.  S.)  is  directly  within  the  terms 
of  that  clause  of  the  Constitution  which  confers  upon  Congress  the 
power  to  regulate  commerce  among  the  several  States,  and  is  con- 
stitutional. 

U.  S.  V.  Boston  & Albany  R.  Co.,  15  Fed.  209  (1SS3). 

PURPOSE. 

a.  The  purpose  of  the  Twenty-eight  Hour  Law  is  to  prevent  any 
carrier  from  transporting  animals  in  interstate  commerce  for  a longer 
period  than  twenty-eight  consecutive  hours  without  unloading  the 
same  in  a humane  manner  into  properly  equipped  pens  for  rest, 
water,  and  feeding,  for  at  least  five  consecutive  hours. 

U.  S.  V.  Atlantic  Coast  Line  K.  Co.  (C.  C.  A.,  1909.)  Circular  No.  21, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

h.  The  object  and  purpose  of  this  act  is  to  prevent  or  reduce  to  a 
minimum  the  cruelty  incident  to  the  transportation  of  live  stock. 

U.  S.  V.  Southern  Pacific  Co.  (1909).  Circular  No.  20,  Office  of  the  Solicitor, 
Department  of  Agriculture. 

c.  The  act  is  a humane  act,  intended  to  prevent  cruelty  to  animals, 
and  the  act  also  has  in  view  the  protection  of  the  interests  of  owners 
of  animals  and  of  the  public,  in  preventing  their  health  and  condition 
being  injured  in  transit. 

U.  S.  V.  Pere  Marquette  K.  Co.,  171  Fed.  586  (1909).  Circular  No.  19, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

d.  The  real  purpose  of  the  statute  is  to  alleviate  the  condition  of 
dumb  animals  in  transit. 

U.  S.  V.  Union  Pacific  It.  Co.,  169  Fed.  65.  (C.  C.  A.,  1909.)  Circular  No. 

14,  Office  of  the  Solicitor,  Department  of  Agriculture. 

e.  The  act  has  a twofold  purpose:  To  prevent  the  cruel  treatment 
of  animals  in  their  handling  and  care,  and  to  subserve  the  interests 
of  the  owner. 

U.  S.  V.  Oregon  Kailroad  & Navigation  Co.,  lfi.‘>  Fed.  640  (1908).  Circular 
No.  8,  Office  of  the  Solicitor,  Department  of  Agriculture. 

'/.  The  primary  purpose  of  the  statute  is  to  prevent  cruelty  to 
animals  while  in  the  course  of  transportation  by  railroad  or  other 
conveyance.  It  may  also  have  been  to  prevent  damages  to  the  owner 
by  reason  of  such  confinement. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  162  Fed.  556  (1908). 

g.  The  general  purpose  of  the  statute  was  to  prohibit  the  inhuman 
treatment  of  domestic  animals  in  the  possession  of  common  carriers. 

U.  S.  V.  Oregon  Short  Line  R.  Co.,  160  Fed.  526  (1908).  Circular  No.  6, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

h.  The  object  and  purpose  of  the  act  is  to  insure  the  humane  treat- 
ment of  animals  in  their  interstate  transportation  upon  cars. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (unnumbered), 
Office  of  the  Solicitor,  Department  of  Agriculture. 

i.  * The  statute  (secs.  4386-4390  R.  S.)  was  passed  not  more  from 
considerations  of  synq)athy  for  the  cattle  tlian  to  protect  the  public 
from  iu) position  and  fi'om  unwholesome  food. 

U.  S.  V.  Louisville  A Nashville  R.  Co.,  18  Fed.  480  (1883). 


12 


THE  TWENTY-ETGtIT  HOUK  LAW  ANNOTATED. 


( r M 


PARTIES  AMENABLE. 

STOCKYARD  COMPANIES  AND  RAILROADS. 

a.  A stockyards  company  authorized  by  its  articles  of  incorpora- 
tion to  construct  and  maintain  railroad  tracks,  and  to  own  or -lease 
and  operate  engines  and  cars  for  hire,  which  transports  live  stock 
delivered  by  other  interstate  railroad  comi)anies  between  their  ter- 
minals and  the  stockyards,  and  hauls  freight  of  the  packing  houses 
from  one  to  the  other,  and  cars  loaded  with  ice  or  fuel  to  such  houses 
from  ditl'erent  railroads  entering  the  city,  is  a railroad  company  or 
common  carrier  other  than  by  water,  within  the  Twenty-eight  Hour 
Law,  which  prohibits  aii}^  railroad  or  common  carrier  other  than  by 
Avater,  Avhose  road  forms  a part  of  a line  of  road  over  Avhich  animals 
shall  be  conveyed  from  one  State  to  another,  from  confining  the  same 
for  a longer  period  than  twenty-eight  consecutive  hours  Avithout 
unloading. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  1G2  Fed.  556  (1908). 

TERMINAL  RAILROAD  C03IPANIES. 

l>.  The  Fort  ITorth  Belt  BailAvay  Company,  transporting  live  stock 
from  raihvay  terminals  at  Fort  Worth,  Texas,  to  Fort  Worth  Stock 
Yards,  is  amenable  to  the  TAventy-eight  Hour  LaAv. 

U.  S.  V.  Fort  Worth  Belt  By.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

c.  * The  Terminal  Kailroad  Association  of  St.  Louis  or  the  St. 
Louis  Merchants’  Bridge  Terminal  Eaihvay  Company,  AAdiich  accept 
at  St.  Louis,  Missouri,  liA^e  stock  which  has  been  confined  in  cars  of 
connecting  raihvays  for  a period  longer  than  tAventy-eight  hours  with- 
out haAdng  been  unloaded  for  rest,  Avater,  and  feeding,  and  carry  and 
deliver  the  stock  across  the  Mississippi  Kiver  to  the  National  Stock 
Yards  in  Illinois,  are  liable  to  the  penalty  imposed  by  section  438G 
K.  S.,  unless  the  failure  of  the  connecting  carriers  to  unload  was  due 
to  storm  or  other  accidental  causes,  or  unle.ss  the  stock  Avere  carried 
in  cars  in  Avhicli  it  had  an  opportunity  for  feed,  rest,  and  Avater. 

XXV  Op.  Atty.  Geii.  411  (1905). 

LESSEES. 

d.  The  statute  is  aimed  at  the  corporation  actually  operating  the 
road.  It  assumes  that  the  lessee  is  the  active  operator,  and  a declara- 
tion Avhich,  folloAving  the  language  of  the  statute,  describes  the  de- 
fendant carrier  as  “ lessee  ” is  sufficient  in  this  particular. 

U.  S.  V.  New  York  Central  & Hudson  RiA^er  R.  Co.,  165  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agriculture. 

CARRIERS  IN  GENERAL. 

e.  * Section  4386  E.  S.  is  unambiguous,  and  is  clearly  designed  to 
prevent  any  “ railroad  company  Avithin  the  United  States  Avhose  rail- 
road forms  any  part  of  a line  of  road  over  Avhich  cattle,  sheep,  SAvine, 
or  other  animals  are  conveyed  from  one  State  to  another  ” from  trans- 


PARTIES  AMENABLE ^VENUE OTHER  ANIMALS.  13 

porting  such  animals  under  conditions  other  than  those  set  forth  in 
the  statute. 

XXV  Op.  Atty.  Gen.  411  (1905). 

/.  *A  railroad  company  which  accepts  stock  for  transportation 
when  the  animals  have  already  been  confined  for  more  than  twenty- 
eight  consecutive  hours  without  unloading  for  feed,  rest,  and  water 
is  undoubtedly  liable  to  the  penalty  which  sec.  4388  11.  S.  provides. 

XXV  Op.  Atty.  Gen.  411  (1005). 

g.  * The  carrier  with  Avhoin  the  contract  for  shipment  is  made  is 
not  liable  for  the  penalty  under  sec.  4388  11.  S.  because  others  in  the 
chain  of  connecting  carriers  violated  the  Jaw  after  the  stock  had 
jtassed  out  of  the  control  of  the  first  carrier. 

U.  S.  V.  Lonisville  Nashville  R.  Co.,  18  Fed.  480  (1883), 

h.  * That  carrier  alone  is  liable  for  the  jienalty  imposed  by  section 
4388  K.  S.  which  had  actual  manual  possession  of  the  animals  at  the 
expiration  of  twenty-eight  hours  after  they  were  loaded. 

U.  S.  V.  Lonisville  & Nashville  R.  Co.,  18  Fed.  480  (1883). 

i.  The  statute  does  not  apply  to  lines  which  lie  wholly  within  the 
territorial  limits  of  a State. 

U.  S.  V.  Lonisville  & Nashville  R.  Co.,  18  Fed.  480  (1883). 

j.  railroad  company  in  a State,  whose  road  forms  a part  of 
a line  over  which  live  animals  are  conveyed  from  another  State, 
and  which  receives  from  connecting  roads  to  be  transported  in  the 
State  animals  which  have  been  brought  from  another  State,  is  en- 
gaged in  interstate  commerce,  and  is  within  the  terms  of  sections 
4386^390  K.  S. 

U.  S.  V.  Boston  & Albany  R.  Co.,  15  Fed.  209  (1883). 

Z‘.  Section  4386  E.  S.  by  its  terms  imposes  a penalty  only  upon 
railroads  which  convey  swine,  sheep,  etc.,  from  one  State  to  another. 
It  does  not  embrace  a shipment  of  swine  from  one  point  to  another 
within  the  same  State  over  a line  entirely  within  the  State. 

U.  S.  V.  East  Tennessee,  Virginia  and  Georgia  R.,  13  Fed.  642  (1882). 

VENUE. 

Actions  to  recover  penalties  under  tlie  Twenty-eight  Hour  Law 
may  be  brought  in  any  one  of  three  districts — the  district  where  the 
offense  is  committed;  the  district  where  the  defendant  resides;  or  a 
district  where  it  carries  on  its  business. 

U.  S.  V.  Chicago  & North  Western  Ry.  Co.  (1908).  Circular  No.  5,  Office  of 
the  Solicitor,  Department  of  Agriculture. 

See  also  St.  Louis  & San  Francisco  R.  Co.  v.  U.  S.,  169  Fed  69.  (C.  C.  A., 

1909.)  Circular  No.  17,  Office  of  the  Solicitor.  Department  of  Agriculture. 
Also  Southern  Bacilic  Co.  v.  U.  S.,  171  Fed.  364.  (C.  C.  A.,  1909.) 

“OTHER  ANIMALS.” 

* TJie  term  “other  animals”  employed  in  the  statute  (sec.  4386 
11.  8.)  includes  mules  and  horses. 

U.  S.  V.  Louisville  A Nashville  R.  Co.,  18  Fed.  480  (1883). 


■ / '-til* 

14  THE  TWENTY-EIGHT  HOUK  LAW  ANNOTATED. 

“ KNOWINGLY.” 

a.  ^‘‘Knou'ingly  ” in  the  Twenty-eight  Hour  Law  simply  means 
with  knowledge  of  the  facts. 

U.  S.  V.  Southern  Pacific  Co,  (1909).  Circular  No.  20,  Office  of  the  Solicitor, 
Departmeut  of  Agriculture. 

h.  ^^Knoioingly  ” in  the  Twenty-eight  Hour  Law  means  with  a 
knoAvledge  of  the  facts  wdiich  taken  together  constitute  the  failure  to 
comply  wdth  the  statute.  A carrier  wdiich  receives  from  another  a 
shipment  of  cattle  wdth  knowdedge  of  how^  long  they  have  been  con- 
fined wdthout  rest,  feed,  or  w^ater.  and  prolongs  the  confinement  be- 
yond the  statutory  period,  ‘‘  knowdngdy  ” violates  the  law^ 

St.  Louis  & San  Francisco  R.  Co.  v.  U.  S.,  169  Fed.  69.  (C.  C.  A.,  1909.) 

Circular  No.  17,  Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  It  is  the  duty  of  a railroad  compan}^  holding  itself  out  to  trans- 
port live  stock  to  knoic  when  shipments  are  delivered  to  it  and  to 
use  reasonable  diligence  in  ascertaining  how  long  stock  so  delivered 
have  been  in  the  cars  wdthout  unloading  for  rest,  feed,  and  w’ater. 

U.  S.  V.  Fort  Worth  Belt  By.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

d.  A railroad  company  knoicingly  violates  the  statute  if  it  has 
knowdedge  of  the  fact  that  animals  have  not  been  unloaded  for  rest, 
feed,  and  water  within  the  prescribed  time,  or  if  it  has  means  of 
knowdedge  of  wdiich  it  is  bound  to  avail  itself  and  wdiich  if  follow^ed 
by  diligent  inquiry  wmuld  have  brought  the  fact  home  to  it,  wdiether 
it  avails  itself  of  such  means  or  not. 

U.  S.  V.  Fort  AVorth  Belt  By.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

e.  Common  carriers  are  chargeable  under  the  statute  w ith  knotv- 
ledge  not  only  of  wdiat  its  agents  actually  kiieiv,  but  of  ivliat  they 
could  have  ascertained  by  the  exercise  of  reasonable  inquiry. 

U.  S.  V.  Colorado  & Southern  liy.  Co.  (1908).  Circular  No.  7,  Office  of 
the  Solicitor,  Department  of  Agriculture. 

/.  A complaint  to  recover  the  penalties  prescribed  by  the  statute 
is  fatally  defective  if  it  fails  to  allege  that  the  defendant  “ know’- 
ingly  confined  the  animals  in  excess  of  tAventy-eight  hours.  This 
is  true  even  if  the  shipment  Avas  made  excltisiA^ely  upon  the  defend- 
ant's line  of  road. 

U.  S.  V.  Oregon  Short  Line  B.  Co.,  160  Fed.  526  (1908).  Circular  No.  6, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

g.  Plaintiff’s  allegation  that  cattle  had  been  confined  b}^  a con- 
necting carrier  for  nineteen  and  one-half  hours,  and  Avere  further 
“ knoAA  ingdy  and  Avillfully  ” confined  by  the  defendant  for  a period 
less  than  tAventy-eight  hours,  is  not  eciuivalent  to  an  allegation  that 
the  defendant  “ knoAvingly  ” confined  the  animals  in  excess  of  tAventy- 
eight  hours,  and  the  complaint  is  fatally  defectiA^e. 

U.  S.  V.  Oregon  Short  Ifiue  B.  Co.,  160  Fed.  526  (1908).  Circular  No.  6, 
Office  of  the  Solicitor,  Department  of  Agriculture. 


WILLFULLY. 


1 


15 


“WILLFULLY.” 

a.  “ Willfully  ” as  used  in  the  Twenty-eight  Hour  Law  means 
intentionally  and  voluntarily. 

U.  S.  V.  Southern  Pacific  Co.  (1909).  Circular  No.  20,  Office  of  the  Solicitor, 
Department  of  Agriculture. 

h.  “ Willfully  ” in  the  Twenty-eight  Hour  Law  means  purposely 
or  obstinately,  and  is  designed  to  describe  the  attitude  of  a carrier 
Avho  intentionally  disregards  the  statute,  or  is  plainly  indifferent  to 
its  requirements. 

St.  Louis  & San  Francisco  R.  Co.  v.  U.  S.,  1G9  Fed.  09.  (C.  C.  A.,  1909.) 

Circular  No.  17,  Ofiice  of  the  Solicitor,  Department  of  Agriculture. 

c.  “ Willfully  ” in  the  Twenty-eight  Hour  Law  means  only  the 
intentional  doing  of  an  act  forbidden  by  the  statute. 

U.  S.  V.  Union  Pacific  R.  Co.,  109  Fed.  05.  (C.  C.  A.,  1909.)  Circular 

No.  14,  Office  of  the  Solicitor,  Department  of  Agriculture. 

(I.  Defendant’s  admission  in  the  answer  that  the  company  know- 
ingly, that  is  intentionally,  confined  animals  beyond  the  prescrilted 
period,  is  an  admission  also  that  it  was  icillfidJy  done. 

U.  S.  V.  Union  Pacific  R.  Co..  109  Fed.  05.  (C.  C.  A.,  1909.)  Circular 

No.  14,  Office  of  the  Solicitor,  Department  of  Agriculture. 

e.  The  word  “ willfully  ” in  the  Twenty-eight  Hour  Law  does  not 
require  that  there  should  be  an  evil  intent  to  constitute  the  offense, 
but  it  is  sufficient  if  the  act  was  done  knowingly  and  purposely. 

U.  S.  r.  New  York  Central  & Hudson  River  R.  Co.,  105  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Ofiice  of  the  Solicitor,  Department  of  Agriculture. 

/.  The  defendant,  being  a free  agent,  “ willfully  ” violated  the 
statute  if  it  knew  what  it  was  doing  and  intended  to  do  what  it  did. 

U.  S.  V.  Fort  Worth  Pelt  Ry.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

g.  A carrier  which  receives  stock  after  they  have  already  been  con- 
fined more  than  thirty-six  consecutive  hours,  and  delivers  them  at  the 
next  place  where  they  can  be  unloaded  for  rest,  food,  and  water  with 
all  reasonable  dispatch,  with  the  facilities  is  has  for  handling  them, 
although  it  might  have  learned  by  inquiry  that  they  had  not  been 
unloaded  within  the  prescribed  period,  can  not  be  held  to  have  acted 
willfully  in  confining  the  cattle  after  it  had  received  them,  or  to  have 
participated  in  confining  them  any  j)art  of  the  time  for  which  the 
penalty  sought  to  be  imposed  was  incurred. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  102  FchI.  550  (1908). 

I” Judgment  in  the  foregoing  case  was  affirmed  on  appeal  on  the 
following  grounds:  ‘‘An  opinion  of  the  trial  judge,  setting  forth  the 
reasons  for  his  decision  in  an  action  at  law  tried  by  a circuit  court 
without  the  intervention  of  a jury,  can  notdte  regarded  as  a-  s])ecial 
finding  within  the  meaning  of  Iv.  8.  049,  TOO.”  The  court  expressly 
refi-ained  from  expression  u])on  the  jfrojKfsitions  of  laAv  advanced  bv 
the  trial  judge  in  support  of  his  conclusion.  Id.,  107  Fed.  120. 
(C.  C.  A.,' 1909.)] 


I ■ I!  I 


16  th‘e  ^twenty-eight  hour  law  annotated. 

h.  The  word  “willfully”  in  the  statute  can  not  be  construed  to 
denote  evil  intent.  It  is  synonymous  with  “ voluntarily  ” or  “ inten- 
tionally.” 

U.  S.  V.  Atchison,  Topeka  & Santa  Fe  R.  Co.,  IGG  Fed.  IGO  (1908).  Circu- 
lar No.  4,  Office  of  the  Solicitor,  Department  of  Agriculture. 

i.  Failure  to  comply  with  the  law  is  not  willful  if  it  is  due  to 
unavoidable  causes. 

U.  S.  r.  Oregon  Short  Line  R.  Co.,  IGO  Fed.  52G  (1908).  Circular  No.  G, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

j.  In  a complaint  to  recover  penalties  under  the  statute,  an  allega- 
tion that  the  defendant  acted  willfully  is  equivalent  to  an  allegation 
that  unloading  within  the  prescribed  time  was  not  prevented  by  storm 
or  by  other  accidental  or  unavoidable  causes. 

U.  S.  V.  Oregon  Short  Line  R.  Co.,  IGO  Fed.  520  (1908).  Circular  No.  G, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

“KNOWINGLY  AND  WILLFULLY.” 

a.  The  words  “ knowingly  and  willfully  ” in  the  Twenty-eight 
Hour  Law  do  not  import  an  evil  intent  or  motive.  Lack  of  fore- 
sight and  due  diligence  on  the  part  of  agents  of  a carrier  engaged  in 
the  transportation  of  live  stock  is  imputable  to  the  carrier,  and  the 
consequent  failure  of  agents,  having  knowledge  of  the  facts  concern- 
ing a particular  shipment,  to  comply  with  the  requirements  of  the 
law,  is  a willful  failure,  notwithstanding  such  precautions  as  the  car- 
rier may  have  taken  to  insure  strict  compliance  by  its  conductors, 
agents,  and  other  persons. 

U.  S.  V.  Atlantic  Coast  Line  R.  Co.  (C.  C.  A.,  1909.)  Circular  No.  21, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

h.  It  cannot  be  said  that  a carrier  “ knowingly  and  willfully  ” 
violated  the  law  when,  at  the  time  the  cattle  were  loaded,  there  was 
a reasonable  expectation  that  they  could  be  carried  within  the  period 
prescribed  by  the  statute  to  a place  where  properly  equipped  pens 
were  available  for  rest,  feed,  or  water,  but  the  cattle  were  actually 
unloaded  at  an  intermediate  point  into  pens  which  were  not  properly 
equipped  within  the  sense  of  the  statute  on  account  of  an  unexpected 
situation  or  emergency,  for  loliich  no  fcndt  is  alleged  against  the 
carrier^  whereby  it  became  imjiossible  to  convey  the  cattle  within  the 
prescribed  period  to  the  point  where  properly  equipped  pens  had  been 
provided  by  the  carrier  and  were  ordinarily  used  for  the  purpose. 

St.  Louis  & San  Francisco  R.  Co.  v.  U.  S.,  1G9  Fed.  G9.  (C.  C.  A.,  1909.) 

Circular  No.  17,  Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  To  “ hnoicingly  and  v'illfully  fail  and  negleet  to  feed,  or  irater 
said  cattle  ” is  an  offense  only  under  the  second  section  of  the  statute. 
The  words  are  not  sufficient  to  properly  describe  an  offense  under 
the  first  section.  If  the  count,  however,  properly  declares  an  offen  e 
under  that  section,  these  words  may  be  stricken  out  as  surpluspT  ' on 
motion,  but  if  no  motion  is  made  therefor,  they  become  immaterial 
matter. 

U.  S.  V.  New  York  Central  & Hudson  River  R.  Co.,  1G5  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agricul- 
ture. 


KNOWINGLY  AND  WILLFULLY. 


17 


d.  AA^erment  by  a defendant  railroad  company  that  hordes  were 
confined  in  violation  of  the  statute,  by  reason  of  the  “ oversight, 
forgetfulness,  and  unintentional  neglect  ” of  its  train  dispaiciiers 
expressly  negatiA’es  the  claim  that  failure  to  rest  and  feed  and  Avater 
the  horses  Avas  not  tlie  resnlt  of  knoAvledge  and  Avillfnlness  on  the 
part  of  the  company. 

Montana  Central  R.  Co.  v.  U.  S.,  164  Fed.  400.  (C.  C.  A.,  1908.)  Circular 

No.  12,  Office  of  the  Solicitor,  Department  of  Agriculture. 

e.  A carrier  knoAvingly  and  Avillfnlly  Afiolates  the  statute  if  it  loads 
stock  at  one  of  its  stations,  Avhen,  according  to  the  schedule  or  ordi- 
narv  running  time  of  the  train,  it  can  not  reach  a place  Avhere  they 
may  be  unloaded  and  given  rest,  food,  and  Avater  Avithin  the  pre- 
scribed time,  and  they  are  not  in  fact  given  such  rest,  food,  and  Avater. 

U.  S.  V.  Sionx  City  Stock  Yards  Co.,  162  Fed.  556  (1908). 

/.  In  an  action  to  recover  the  penalty  prescribed  by  the  statute, 
proof  is  not  required  that  the  defendant  confined  the  animals  Avith  a 
inaleAmlent  purpose  of  cruelly  torturing  them,  or  of  damaging  the 
OAvner.  The  more  reasonable  interpretation  of  the  Avords  “ knoAvingly 
and  Avillfully  ” is  that  the  penalty  is  incurred  if  the  defendant  knoAv- 
ingly  and  intentionally  or  purposely  confined  the  stock  beyond  the 
tAventy-eight  or  thirty-six  hour  period. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  162  Fed.  556  (1908). 

g.  A raihvay  company  “ knoAvingly  and  Avillfully  ” violates  the 
TAventy-eight  Hour  LaAv  if  the  conq^any,  or  its  agents  and  servants 
Avho  had  charge  of  the  shipments,  kneAv,  or  by  reasonable  inquiry 
could  liaA^e  ascertained,  the  hour  at  Avhich  the  sheep  Avere  loaded  and 
that  they  had  not  been  unloaded  up  to  the  time  the  cars  came  into 
their  joossession  and  it  continues  the  confinement  of  the  animals  be- 
yond their  prescribed  period. 

U.  S.  V.  Colorado  & Southern  R.  Co.  (1908).  Circular  No.  7,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

li.  A carrier  knowingly  and  willf  idly  fails  to  comply  Avith  the  re- 
quirements of  the  statute  in  respect  to  unloading,  rest,  and  feeding, 
Avhen  the  agents  and  servants  in  charge  of  the  train  knoAvingly  con- 
fine animals  for  a period  longer  than  that  prescribed  by  the  statute, 
provided  they  are  not  prevented  from  unloading  to  give  them  rest,  by 
storm  or  other  accident  or  unaAmidable  cause,  Avhicli  could  not  luiA^e 
been  anticipated  or  avoided  by  the  exercise  of  due  diligence  and 
foresight. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (unnumbered), 
Office  of  the  Solicitor,  De])artment  of  Agriculture. 

i.  The  failure  of  an  employee  of  a carrier  to  inform  other  employees 
tliat  live  stock  AA’ere  in  the  cars  does  not  relieve  the  company  from  lia- 
bility for  having  %oiUf\dly  and  knowingly  failed  to  comply  Avith  the 
proM.uc.ns  of  the  dhventy-eight  Hour  LaAA\ 

U.  ?;  Cleat  N(»rthern  R.  (’o.  (1907).  Circular  No.  1,  Office  of  the  Solic- 
itor, Depaitment  of  Agriculture. 

y.  In  an  action  to  recover  the  penalty  prescribed  by  the  TAventy- 
eight  Hour  Iaiav,  the  United  States  must  aA^er  and  establish  by  aflirm- 
ativ'O  testimony  the  truth  of  the  averment  that  the  defendant  did 


18 


THE  TWENTY-EIGHT  HOUE  LAW  ANNOTATED. 


“ knowingly  and  willfully  ” fail  to  comply  Avitli  the  provisions  of  the 
statute. 

U.  S.  V.  Louisville  & Nashville  R.  Co.,  157  Fed.  979  (1907). 

k.  A carrier  which  receives  live  stock  from  a connecting  carrier 
after  the  animals  haA^e  been  already  confined  beAT)nd  the  period  pre- 
scribed by  the  TAventy-eight  Hour  LaAv,  and  continues  their  trans- 
jiortation  for  several  hours  more  before  unloading,  is  liable  for 
negligence  fer  se.  Whether  the  carrier  knoAvingly  and  Avillfully 
fails  to  comply  Avith  the  statute  is  a question  for  submission  to  the 

U.  S.  V.  New  York  Central  & Hudson  River  R.  Co.,  15G  Fed.  249  (1907). 

“ KNOWINGLY  AND  WILLINGLY.” 

[The  word  “ icillfulhj  ” appears  in  the  original  act  of  March  3,  1873,  but  when 
this  statute  was  incorporated  in  the  Revised  Statutes  (sec.  4388)  the  word 
'' icUlingJy ''  was  substituted  therefor.] 

*A  carrier  must  be  deemed  to  hawe  “ knowingly  and  willingly  ” 
violated  the  laAv,  unless  he  Avas  preA^ented  from  unloading  for  rest, 
food,  and  Avater  as  required  by  laAV  by  a cause  AA^hich  could  not  have 
been  avoided  by  due  care.  Accident  to  a train  due  to  negligence  does 
not  excuse  the  carrier. 

Newport  News  & Mississippi  Valley  Co.  v.  U.  S.,  G1  Fed.  488  (1894). 

PERIOD  OF  CONFINEMENT. 

a.  The  words  “ confine  the  same  ” mean  no  more  than  ordinary 
transportation  of  cattle  in  the  ordinary  railroad  cars  used  for  that 
purpose.  A declaration  in  Avhich  Avords  having  the  same  effect  are 
substituted  for  these  Avords  of  the  statute  is  not  open  to  objection, 
certainly  after  verdict,  and  the  requirements  of  the  laAV  in  this  par- 
ticular are  fully  complied  Avith. 

U.  8.  V.  NeAv  York  Central  & Hudson  River  R.  Co.,  1G5  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agri- 
culture. 

See  also  Unit  of  Violation,  infra. 

h.  In  estimating  the  period  of  confinement,  time  consumed  in  load- 
ing animals  upon  cars  and  in  unloading  them  out  of  cars  shall  not 
be  included  as  a part  of  the  time  during  Avhich  a carrier  has  the  right 
to  confine  the  animals  under  the  statute. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (unnumbered). 
Office  of  Solicitor,  Department  of  Agriculture. 

See  also  “ Sheep,”  infra. 

c.  A carrier  Avhich  accepts  for  transportation  live  stock  Avhich  has 
been  already  confined  by  a connecting  carrier  beyond  the  prescribed 
period,  and  continues  to  transport  the  animals  for  several  additional 
hours  before  unloading  the  same,  is  ^R'iina  facie  guilty  of  a violation 
of  the  TAventy-eight  Hour  LaAv. 

U.  S.  V.  New  York  Central  & Hudson  River  R.  Co.,  15G  Fed.  249. 

d.  * The  time  during  Avhich  animals  haA^e  been  confined  without 
rest,  Avater,  or  feed  on  connecting  roads  from  Avhich  they  are  received 


ACCIDENTAL  OR  UNAVOIDABLE  CAUSES. 


19 


shall  be  iiieluded  in  estimating;  whether  the  animals  Iiave  been  con- 
fined beyond  the  period  prescribed  by  the  statute. 

U.  S.  V.  Oregon  Short  Line  R.  Co.,  160  Fed.  526  (1908),  Circular  No.  6, 
Office  of  Solicitor,  Dept.  Agricnltnre;  U.  S.  v.  Louisville  & Nashville  R. 
Co.,  18  Fed.  480  (1883),  XXV  Op.  Atty.  Gen.  411  (1905), 

“ACCIDENTAL  OR  UNAVOIDABLE  CAUSES.’^ 

a.  The  failure  of  a conductor  to  examine  a waybill  on  which  a 
shipment  of  calves  is  noted  is  negligence  on  the  part  of  the  defend- 
ant company,  and  if  in  consequence  the  calves  are  confined  beyond 
the  period  j)ermitted  by  the  Twenty-eight  Hour  Law  the  carrier  is 
liable  to  the  penalty  thereby  prescribed.  It  can  not  be  contended  that 
such  failure  was  an  “ accidental  or  unavoidable  ” cause  which  could 
not  have  been  anticipated  or  avoided  by  the  exercise  of  due  care  and 
foresight. 

U.  S.  V.  Atlantic  Coast  Line  R.  Co.  (C.  C.  A.,  1909.)  Circular  No.  21, 
Office  of  the  Solicitor,  Department  of  Agricnltnre. 

h.  Great  and  unusual  press  of  business,  unexplained  and  of  itself, 
is  not  an  accidental  or  unavoidable  cause  which  could  not  be  antici- 
pated or  avoided  by  the  exercise  of  due  diligence  and  foresight 
within  the  meaning  of  section  1 of  the  act. 

U.  S.  V.  Union  Pacific  R.  Co.,  169  Fed.  65.  (C.  C.  A.,  1909.)  Circular  No.  14, 

Office  of  the  Solicitor,  Department  of  Agricnltnre. 

c.  Failure  to  provide  unloading  stations,  congested  traffic  condi- 
tions reasonably  to  be  anticipated  from  past  experiences,  and  break- 
downs en  route,  resulting  from  negligent  operation  or  omission  to 
furnish  properly  equi])ped  and  inspected  engines  and  cars,  are  not 
accidents  or  imavoidahle  causes  which  can  not  be  anticipated  and 
avoided  by  due  diligence  and  foresight. 

U.  S.  V.  Atchison,  Topeka  & Santa  Fe  R.  Co.,  166  Fed.  160  (1908).  Circular 
No.  4,  Office  of  the  Solicitor,  Department  of  Agriculture. 

d.  To  avail  itself  of  a breakdown  or  Avreck  as  an  excuse  for  non- 
compliance  with  the  statute,  the  carrier  must  show  that  the  circum- 
stances relied  upon  resulted  from  a cause  Avhich  could  not  have  been 
avoided  by  the  exercise  of  due  diligence  and  foresight. 

U.  S.  V.  Atchison,  Topeka  & Santa  Fe  R.  Co.,  166  Fed.  160  (1908).  Circular 
No.  4,  Office  of  the  Solicitor,  Department  of  Agricnltnre. 

e.  Drunkenness  of  an  employee  of  the  defendant  company  and  re- 
sulting failure  to  perform  his  duty  is  not  such  an  accidental  cause 
Avithin  the  meaning  of  the  statute  as  Avill  excuse  noncompliance  Avith 
its  terms. 

U.  S.  V.  Fort  AVorth  Belt  R.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agricnltnre. 

/.  It  is  not  an  excuse  under  the  TAventy-eight  Hour  LaAV  for  the 
railroad  comjiany  to  say  that  “ Ave  ])ut  our  telegrajihic  service  to  Avork 
and  got  the  men,  but  the  men  called  Avent  to  sleeji  and  Ave  didn’t  knoAv 
Avhere  to  find  them.” 

U.  S.  V.  Colorado  A Soul  hern  R.  Co.  (1908).  Circular  No.  7,  Office  of  the 
Solicitor,  Department  of  Agriculture. 


20 


THE  TWENTY-EIGHT  HOUR  LAW  ANNOTATED. 


g.  A complaint  to  recover  penalties  under  the  statute  is  not  defec- 
tive for  failure  to  allege  that  unloading  was  not  prevented  by  storm 
or  by  other  accidental  or  unavoidable  causes,  which  conld  not  be 
anticipated  or  avoided  by  the  exercise  of  due  diligence  and  foresight. 

U.  S.  V.  Oregon  Short  Line  11.  Co.,  IGO  Fed.  520  (1908).  Circular  No.  6, 
Office  of  the  Solicitor,  Department  of  Agricnltnre. 

h.  In  a complaint  to  recover  penalties  under  the  Twenty-eight  Hour 
Law,  an  allegation  that  the  defendant  acted  willfully  is  equivalent  to 
an  allegation  that  failure  to  unload  within  the  prescribed  time  was 
not  due  to  storm  or  other  accidental  or  unavoidable  causes. 

U.  S.  V.  Oregon  Short  Line  II.  Co.,  100  Fed.  520  (1908).  Circular  No.  0, 
Office  of  Solicitor,  Department  of  Agriculture. 

i.  If  the  confinement  of  stock  for  a longer  period  than  the  statutory 
time  results  from  an  accident  caused  by  the  negligence  of  the  company 
transjiorting  the  stock,  the  transportation  company  is  liable  under  the 
statute. 

U.  S.  V.  Sonihern  Pacific  Co.,  157  Fed.  4.59  (1907).  Circular  (imn umbered), 
Office  of  the  Solicitor,  De])artment  of  Agriculture. 

j.  Mere  press  of  business  is  no  excuse  for  confining  stock  for  a 
longer  period  than  the  time  allowed  by  law. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  4.59  (1907).  Circular  (imnnmbered). 
Office  of  the  Solicitor,  Department  of  Agriculture. 

h.  Sidetracking  to  allow  passenger  trains  or  fast  freight  trains  the 
right  of  way  is  no  excuse  or  defense  for  the  violation  of  the  law,  if 
the  meeting  of  such  trains  could  have  been  anticipated  at  the  time  the 
stock  train  was  dispatched  from  its  loading  point. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (imnmnbered) , 
Otfice  of  the  Solicitor,  Department  of  Agriculture. 

1.  * To  avail  itself  of  the  excuse  of  storm,  the  carrier  must  show 
not  only  the  fact  of  a storm,  but  that  with  due  care  he  was  prevented, 
as  an  unavoidable  result  of  the  storm,  from  complying  with  the  law. 
No  other  accidental  causes  would  be  an  excuse,  unless  the  cause  and 
effect  are  likewise  unavoidable. 

Newport  News  Mississippi  Valley  Co.  r.  U.  S.,  01  Fed.  488  (1894). 

“ SHEEP.” 

a.  The  proviso  of  the  statute  “ that  it  shall  not  be  required  that 
sheep  be  unloaded  in  the  nighttime,  but  where  the  time  expires  in  the 
nighttime,  in  case  of  sheej),  the  same  may  be  continued  in  transit  to  a 
suitable  place  for  unloading,  snl)iect  to  the  aforesaid  limitation  of 
thirty-six  hours,”  is  not  fatally  defective  for  uncertainty,  the  meaning 
being  that  in  case  of  sheep,  if  the  twenty-eight  hour  limit  expires  at 
night,  the  transit  may  be  continued  to  a suitable  place  for  unloading, 
without  the  consent  of  the  owner  or  custodian,  except  that  in  no  case 
shall  the  thirty-six  hour  limit  be  exceeded. 

Sontfiern  Pacific  Co.  r.  U.  S.,  171  Fed.  300.  (C.  C.  A.,  1909.)  Circular 

No.  23,  Office  of  the  Solicitor,  Dei)artment  of  Agriculture. 

h.  In  the  case  of  sheep,  when  the  twenty-eight  hour  limit  expires 
in  the  night,  the  carrier  may  continue  them  without  unloading  until 
the  ex])iration  of  thirty-six  hours. 

U.  S.  V.  Colorado  Southern  K.  Co.  (1908).  Circular  No.  7,  Office  of  the 
Solicitor,  Department  of  Agriculture. 


SHEEP IN  THE  NIGHTTIME UNLOADING. 


21 


G.  The  statute  authorizes  carriers  to  continue  tlie  conhneinent  of 
sheep  up  to  thirty-six  hours,  but  no  longer  than  thirty-six  hours,  even 
without  the  shipper’s  request,  when  the  twenty-eight  hour  period 
expires  in  the  nighttime.  It  is  the  duty  of  the  carrier  to  unload  the 
sheep  on  the  preceding  day  if  the  thirty-six  hour  limit  will  expire 
in  the  nighttime;  at  the  expiration  of  the  thirty-six  hours  sheep  must 
be  unloaded,  even  in  the  nighttime. 

U.  S.  V.  Atchison,  Topeka  Santa  Fe  R.  Co,,  166  Fed.  160  (1908).  Cir- 
cular No.  4,  Office  of  the  Solicitor,  Department  of  Agricnlture. 

(I.  The  limit  of  time  prescribed  for  the  confinement  of  all  animals, 
except  sheep,  is  twenty-eight  hours,  except  that  when  there  is  a writ- 
ten request  for  an  extension  of  time  they  may  be  confined  for  thirty- 
six  hours.  In  the  transportation  of  sheep,  if  the  twenty-eight-liour 
limit  expires  in  the  nighttime,  the  sheep  may  be  continued  in  transit 
to  a suitable  place  for  unloading,  up  to  thirty-six  hours,  without  re- 
quest, but  not  to  exceed  the  limit  of  thirty-six  hours,  even  if  a reijuest 
to  so  exceed  the  latter  limit  be  made  by  the  owner  or  shipjier.  When 
tlie  limitation  of  thirty-six  hours  will  expire  in  the  nighttime,  it  is 
the  duty  of  the  carrier  to  unload  the  shipment  of  sheep  before  dark. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (iimiimibered), 
Office  of  the  Solicitor,  Department  of  Agriculture. 

“IN  THE  NIGHTTIME.” 

The  words  “ in  the  nighttime  ’’  mean  that  period  of  time  between 
the  termination  of  daylight  in  the  evening  of  one  day  and  the  earliest 
dawn  of  the  next  morning. 

U.  S.  v.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (umium- 
hered).  Office  of  the  Solicitor,  Department  of  Agriculture. 

UNLOADING  FOR  REST,  WATER,  AND  FEEDING. 

a.  A declaration  alleging  that  the  defendant  failed  to  unload  tlie 
cattle  “ for  rest,  water,  or  feeding  ” is  not  open  to  objection  on  the 
ground  alleged  by  the  defendant  that  it  would  be  sufficient  if  the 
cattle  were  unloaded  for  any  purpose. 

U.  S.  V.  New  A"ork  Central  & Hudson  River  R,  Co.,  165  Fed.  833,  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agricul- 
ture. 

h.  It  is  the  duty  of  the  carrier  having  possession  of  the  cattle  when 
the  twenty-eight  hour  limit  is  reached  to  unload  the  animals  for  food, 
Avater,  and  rest. 

U.  S.  V.  Oregon  Short  Line  R.  Co.,  160  Fed.  528  (1908).  Circular  No.  6, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  * It  is  immaterial,  in  an  action  to  recover  a penalty  under  the 
statute,  Avhether  failure  to  feed  and  water  the  stock  is  due  to  the 
ilefault  of  the  shipper  or  the  carrier.  The  act  requires  the  shipper 
to  feed  and  Avater  the  stock  in  the  first  instance,  but  if  he  fails  the  car- 
rier must  do  it  for  him. 

U.  S.  V.  Louisville  & Nashville  R.  Co.,  18  Fed.  480  (1883). 


22 


THE  TWENTY-EIGHT  HOUK  LAW  ANNOTATED. 


“PROPERLY  EQUIPPED  PENS.” 

a.  A railway  company  which  voluntarily  unloads  cattle  for  rest, 
Avater,  and.  feeding-  into  pens  Avhich  are  not  properly  equipped  for 
the  purpose  knowingly  and  willfulh"  Auolates  the  law. 

U.  S.  V.  Sontbern  Pacific  Co.  (1909).  Circular  No.  20,  Office  of  the  Solicitor, 
Department  of  Agriculture. 

1}.  Whether  a pen  is  “ properly  equipped  ” Avithin  the  meaning  of 
the  TAventy-eight  Hour  La  ay  is  a question  of  fact  to  be  determined  by 
the  jury  from  the  testimony  offered  in  each  case. 

U.  S.  V.  Sontbern  Pacific  Co.  (1909).  Circular  No.  20,  Office  of  tbe  Solicitor, 
Department  of  Agriculture. 

c.  It  is  assumed,  but  not  decided,  that  the  statute  prohibits  not 
merely  the  confinement  of  cattle  beyond  the  prescribed  period  Avithout 
rest,  water,  or  food,  but  also  unloading  them  into  pens  not  properly 
equipped  for  rest,  Avater,  and  feeding. 

St.  Louis  & San  Francisco  R.  Co.  v.  U.  S.,  169  Fed.  69.  (C.  C.  A.,  1909.) 

Circular  No.  17,  Office  of  tbe  Solicitor,  Department  of  Agriculture. 

d.  It  is  the  duty  of  a carrier  engaged  in  the  interstate  transporta- 
tion of  animals  to  provide  a sufficient  number  of  suitably  equipped 
corrals  or  stock  yards  at  AAdiich  to  unload  stock,  and  in  AAdiich  said 
stock  may  hai^e  suitable  care,  food,  AA’ater,  and  rest. 

U.  S.  v.  Sontbern  I'acific  Co.,  157  Fed.  459  (1907).  Circular  (unnumbered). 
Office  of  tbe  Solicitor,  Department  of  Agriculture. 

UNIT  OF  VIOLATION. 

a.  Where  several  consignments  of  live  stock,  consigned  to  one  con- 
signee, are  coiiA’eyed  uiion  the  same  train,  the  unit  in  case  of  Auolation 
of  the  act  is  the  indiAudual  shipment  and  not  the  carload. 

Sontbern  Pacific  Co.  v.  U.  S.,  171  Fed.  360.  (C.  C.  A.,  1909.)  Circular  No. 

23,  Office  of  tbe  Solicitor,  Department  of  Agriculture. 

1).  Where  a train  contains  shipments  by  tAvo  different  consignors, 
each  shipment  not  transported  in  conformitA^  Avith  the  statute  consti- 
tutes a separate  offense. 

U.  S.  V.  New  York,  Chicago  & St.  Louis  11.  Co.,  168  Fed.  699.  (C.  C.  A., 

1909.)  Circular  No.  16,  Office  of  tbe  Solicitor,  Department  of  Agriculture. 

c.  Where  there  are  seAxral  shipments  of  stock  handled  in  one  train, 
there  are  as  many  offenses  against  the  statute  as  there  are  shipments 
confined  beyond  the  prescribed  period. 

U.  S.  V.  Atcbisou,  Topeka  & Santa  Fe  R.  Co.,  166  Fed.  160  (1908).  Circular 
No.  4,  Office  of  tbe  Solicitor,  Department  of  Agriculture. 

d.  When  several  consignments  of  cattle  are  transported  on  one  or 
more  trains,  each  consignment  must  be  considered  a unit  in  imposing 
the  penalty. 

U.  S.  V.  New  York  Central  & Hudson  River  R.  Co.,  165  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agriculture. 

e.  In  an  action  to  recoATr  the  statutory  penalty  for  carrying  stock 
in  continuous  transportation  for  more  than  tAA^enty-eight  hours  Avitli- 


UNIT  OF  VIOLATION. 


23 


out  rest,  water,  and  feed,  the  shipment,  and  not  the  car  or  trainload,  is 
the  integer  for  the  iinjiosition  of  penalties. 

U.  S.  V.  Oregon  Railway  & NaAigation  Co.,  163  Fed.  642  (1908).  Circular 
No.  8,  Office  of  the  Solicitor,  Department  of  Agriculture. 

/.  A single  penalty  is  incurred  for  confining  live  stock  beyond  the 
period  of  twenty-eight  or  thirty-six  hours,  and  the  time  of  its  confine- 
ment beyond  that  period  is  not  material,  unless  it  shall  be  for  another 
period  of  tAA^enty-eight  or  thirty-six  hours,  when  it  might  be  claimed 
that  another  penalty  had  been  incurred. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  162  Fed.  556  (1908). 

g.  Where  several  shipments  of  live  stock  belonging  to  ditferent 
owners  are  contained  in  the  same  train  and  the  carrier  fails  to  unload 
as  prescribed  by  the  statute,  a penalty  is  recoverable  for  each  ship- 
ment. 

U.  S.  V.  Baltimore  «&  Ohio  SoutliAA’estern  R.  Co.,  159  Fed.  33.  (C.  C.  A., 

1908.)  Circular  No.  3,  Office  of  the  Solicitor,  Dei)artmeiit  of  Agriculture. 

li.  Each  independent  shipment  or  consignment  of  stock  is  the  basis 
for  determining  whether  a violation  has  been  committed,  and  when 
a particular  train  is  made  up  of  several  consignments  of  stock  of  vari- 
ous kinds  from  ditferent  consignors  to  the  same  or  different  consignees, 
and  the  entire  trainload  of  stock  is  detained  longer  than  the  time  pre- 
scribed by  the  statute,  there  are  as  mau}^  violations  of  the  law  as  there 
are  various  shipments  making  up  the  aforesaid  train. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  4.59  (1907).  Circular  (unnumbered), 
Office  of  the  Solicitor,  Department  of  Agriculture. 

i.  The  time  of  confinement  of  a shipment  of  stock  is  to  be  reckoned 
from  the  completion  of  the  loading  at  any  given  point  to  the  com- 
mencement of  the  unloading  of  the  stock  at  the  next  point  along  the 
route;  and  there  are  as  many  Anolations  of  the  law  as  the  periods  of 
confinement  betAveen  loading  and  tlie  next  unloading  are  in  excess  of 
the  statutory  time  prescribed  for  such  confinement  betAveen  the  point 
of  original  departure  and  the  final  destination  of  the  shipment,  eA^en 
though  they  relate  to  the  same  stock  or  the  same  train. 

U.  S.  f.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (unnumbered). 
Office  of  the  Solicitor,  Department  of  Agriculture. 

j.  * Confinement  of  a trainload  of  cattle  for  a longer  period  than 
tAventy-eight  hours  Avithout  unloading,  Avhen  the  cars  constituted  one 
train,  and  all  the  cattle  Avere  shijtped  by  the  same  consignor  to  the 
same  consignee  at  the  same  time,  is  a single  offense.  The  unlaAvful 
confinement  of  each  carload  can  not  be  held  to  constitute  a separate 
offense,  Avhen  the  different  cars  make  one  train,  and  the  shipment  of 
cattle  is  one  shipment. 

U.  S.  V.  St.  Louis  & San  Francisco  R.  Co.,  107  Fed.  870  (1901). 

k.  * The  unhiAvful  confinement  of  each  animal  in  a trainload  cannot 
be  held  to  constitute  a separate  offense,  dfiie  amount  of  the  penalty 
assessed  must  be  Avithin  the  limits  fixed  by  tlie  statute  (secs.  4386-4390 
R.  S.),  that  is,  “ not  less  than  one  hundred  nor  more  than  fiA^e  hundred 
dollars.” 

U.  S.  V.  Boston  & Albany  R.  Co.,  15  Fed.  209  (1883), 


24 


THE  TWENTY-EIGHT  HOUR  LAW  ANNOTATED. 

ASSESSMENT  OF  THE  PENALTY. 

a.  The  statute  does  not  definitely  fix  the  penalty,  but  prescribes  for 
each  violation  a sum  of  not  less  than  one  hundred  nor  more  than  five 
hundred  dollars.  Determination  of  the  amount  which  may  be  as- 
sessed in  a particular  case  is  a matter  of  discretion  to  be  exercised  by 
the  trial  court. 

U.  S.  V.  Atlantic  Coast  lane  li.  Co.  (C.  C.  A..  1909.)  Circular  No.  21, 
Office  of  tlie  Solicitor,  Department  of  Agricnltnre. 

h.  In  an  action  to  recover  a penalty  under  the  Twenty-eight  Hour 
Latv,  if  the  verdict  is  found  against  the  defendant,  it  is  necessary  for 
the  jury  to  assess  the  penalty  within  the  limits  prescribed  by  the 
statute. 

U.  S.  V.  Sontliern  Pacific  Co.  (1909).  Circular  No.  20,  Office  of  the  Solic- 
itor. Department  of  Agricnltnre. 

c.  It  is  for  the  jury,  if  its  ATrdict  is  for  the  United  States,  to  assess 
the  penalty  tvithin  the  limits  prescribed  bi"  the  statute. 

U.  S.  r.  Fort  Worth  Belt  By.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agricnltnre. 

d.  In  an  action  to  recover  a penalty  under  the  statute,  it  is  for  the 
jury  to  determine  the  facts,  and  if  the  verdict  is  against  the  defendant, 
to  assess  the  penalty  under  the  limits  prescribed  in  the  law. 

U.  S.  r.  Colorado  & Sontliern  By.  Co.  (1908).  Circular  No.  7,  Office  of  the 
Solicitor,  Department  of  Agricnltnre. 

e.  After  verdict  in  favor  of  the  Government,  the  duty  of  fixing  the 
amount  of  the  penalty  devolves  upon  the  court. 

U.  S.  V.  Southern  Pacific  Co.,  162  Fed.  412  (1908).  Circular  No.  9,  Office 
of  the  Solicitor,  Department  of  Agricnltnre. 

/.  Whether  the  law  has  been  violated  is  a question  of  fact  to  be 
determined  by  the  jury,  and  if  the  verdict  is  in  favor  of  the  United 
States  and  against  the  defendant,  it  is  for  the  court  to  determine  the 
amount  of  the  penalty  within  the  limits  of  the  statute. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (nnnnmbered). 
Office  of  the  Solicitor,  Department  of  Agricnltnre. 

g.  *After  verdict  for  the  plaintift',  the  amount  of  the  penalty  is  to 
be  determined  by  the  court,  within  the  limits  prescribed  by  the’ 
statute  (secs.  4e38G-4390  R.  S.). 

U.  S.  V.  Boston  & Albany  B.  Co.,  15  Fed.  209  (1883). 

h.  ^ The  plaintiff  can  sue  only  for  the  penalty  prescribed  by  the 
statute  (secs.  4386—1390  R.  S.). 

U.  S.  V.  Boston  & Albany  B.  Co.,  15  Fed.  209  (1883). 

EVIDENCE. 

P.UIfDEN  OF  PROOF. 

a.  The  burden  is  on  the  Government  to  establish  by  a preponderance 
of  the  evidence  the  acts  charged  as  constituting  a violation  of  the 
Tiventy-eight  Hour  Law. 

U.  S.  V.  Southern  Pacific  Co.  (1909).  Circnlar  No.  20,  Office  of  the  Solicitor, 
Dei>artment  of  Agricnltnre. 


EVIDENCE. 


25 


h.  The  statute  provides  a penalty  to  be  recovered  hy  civil  action. 
It  must  be  presumed  that  the  usual  incidents  of  all  civil  actions  at- 
tach,, one  of  which  is  that  proof  by  a reasonable  freponderance  of  the 
evidence  is  sufficient. 

U.  S.  V.  Soiitliern  Pacific  Co.,  162  Fed.  412  (1908).  Circular  No.  9,  Office 
of  the  Solicitor,  Department  of  Agriculture. 

c.  A suit  under  the  statute  is  to  be  regarded  as  merely  a civil  pro- 
ceeding.^ so  far  as  the  ordinary  rules  of  pleading  and  proof  are  con- 
cerned. The  United  States  are  bound  to  support  their  case  by  only 
a jireponderance  of  the  evidence. 

U.  S.  r.  New  York  Central  & Hudson  Fiver  R.  Co.,  165  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agriculture. 

d.  The  burden  is  on  the  defendant  to  prove  “ other  accidental  or 
unavoidable  causes.” 

U.  S.  V.  New  York  Central  & Hudson  River  R.  Co.,  165  Fed.  833.  (C.  C.  A., 

1908.)  Circular  No.  15,  Office  of  the  Solicitor,  Department  of  Agriculture. 

e.  The  burden  is  on  the  Government  to  prove  its  charge  against  the 
defendant  by  a preponderance  or  greater  weight  of  the  evidence,  but 
not  beyond  a reasonable  doubt. 

U.  S.  V.  Fort  Worth  Kelt  R.  Co.  (1908).  Circular  No.  11,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

/.  A suit  under  the  Twenty-eight  Hour  Law  is  not  a criminal  case, 
and  the  Government  is  not  held  to  proof  beyond  a reasonable  doubt, 
but  by  a preponderance  or  greater  weight  of  the  evidence. 

U.  S.  V.  Colorado  & Southern  R.  Co.  (1908).  Circular  No.  7,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

g.  The  burden  of  proof  is  not  on  the  Government  to  show  that  the 
defendant  w^as  not  prevented  from  unloading  within  the  time  pre- 
scribed, by  storm  or  other  accidental  or  unavoidable  cause. 

U.  S.  V.  Oregon  Short  Line  R.  Co.,  160  Fed.  526  (1908).  Circular  No.  6, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

h.  The  Government  is  not  required  to  establish  the  acts  constitut- 
ing a violation  of  the  statute  beyond  all  reasonable  doubt,  but  simply 
by  a preponderance  of  the  evidence. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (unnum- 
bered), Office  of  the  Solicitor,  Department  of  Agriculture. 

i.  The  burden  of  proof  is  on  the  United  States  to  establish  every 
fact  constituting  an  oh'ense  under  the  statute  to  the  exclusion  of  a 
reasoncdjle  doubt. 

U.  S.  V.  Louisville  & Nashville  R.  Co.,  157  Fed.  979  (1907). 

PRESUMPTIONS. 

j.  There  is  no  presumption  that  cattle  which  have  been  trans- 
ported by  preceding  carriers  for  twenty-eight  or  thirty-six  hours 
have  not  been  unloaded,  fed,  and  watered  within  the  required  time. 
The  presumption  is  that  the  preceding  carrier  had  performed  its 
duty  under  the  law. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  162  Fed.  556  (1908). 


2C)  the  twenty-eight  hour  law  annotated. 

h.  There  is  no  presumption  in  a prosecution  under  the  statute, 
either  of  law  or  fact,  that  cattle  have  not  been  taken  out,  rested, 
Avatered,  and  fed  by  the  OAAuier  or  previous  carrier,  nor  that  the  last 
carrier  has  received  information  of  how  long  the  cattle  have  been 
confined,  nor  how  they  have  been  treated.  The  burden  is  on  the 
Government  to  establish  these  facts  affirmatively  beyond  reasonable 
doubt. 

U.  S.  V.  Louisville  & Nashville  R.  Co.,  157  Feci.  979  (1907). 

RULE  OF  CONSTRUCTION. 

а.  The  maxims  and  rules  of  interpretation  require  that  we  have 
regard  to  all  provisions  of  the  statute,  and,  if  possible,  attribute  to 
the  language  of  each  a meaning  which  will  permit  other  provisions 
to  have  their  due  effect. 

U.  S.  v.  Baltimore  & Ohio  Southwestern  R.  Co.,  159  Fed.  33.  (C.  C.  A., 

19<J8.)  Circular  No.  3,  Office  of  the  Solicitor,  Department  of  Agriculture. 

б.  A suit  to  recover  a penalty  under  the  Twenty-eight  Hour  Law 
is  treated  as  being  a civil  proceeding. 

U.  S.  V.  Atlantic  Coast  Line  R.  Co.  (C.  C.  A.,  1909.)  Circular  No.  21, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  An  action  to  recover  a penalty  under  the  Twenty-eight  Hour 
Law  is  civil  in  form,  although  undoubtedly  criminal  in  its  nature. 

U.  S.  V.  Chicago  & North  Western  R.  Co.  (1908).  Circular  No.  5,  Office  of 
the  Solicitor,  Department  of  Agriculture. 

d.  In  determining  the  jurisdiction  of  the  court,  or,  in  other  words, 
the  venue,  an  action  to  recover  a penalty  under  the  TAventy-eight 
Hour  LaAV  is  to  be  regarded  as  a civil  action. 

U.  S.  V.  Chicago  & North  Western  R.  Co.  (1908).  Circular  No.  5,  Office  of 
the  Solicitor,  Department  of  Agriculture. 

e.  An  action  to  recover  the  penalty  prescribed  by  the  statute  is  a 
civil  action. 

U.  S.  V.  Southern  Pacific  Co.,  162  Fed.  412  (1908).  Circular  No.  9,  Office 
of  the  Solicitor,  Department  of  Agriculture. 

/.  An  action  to  recover  the  penalty  prescribed  by  the  statute  par- 
takes of  the  ordinary  incidents  of  a civil  action,  and  is  subject  to  the 
rules  of  construction  and  of  evidence  Avhich  are  applied  in  civil 
actions. 

Montana  Central  R.  Co.  v.  U.  S.,  164  Fed.  400.  (C.  C.  A.,  1908.)  Circular 

No.  12,  Office  of  the  Solicitor,  Department  of  Agriculture. 

g.  The  statute  is  penal  and  is  not  to  be  extended  beyond  the  fair 
meaning  of  the  language  employed. 

U.  S.  V.  Baltimore  & Ohio  Southwestern  R.  Co.,  159  Fed.  33.  (C.  C.  A., 

1908.)  Circular  No.  3,  Office  of  the  Solicitor,  Department  of  Agriculture. 

A.  The  statute  is  penal  and  criminal  and  must  be  strictly  construed, 
but  not  so  strictly  as  to  defeat  the  intention.  The  rule  of  construction 
is  not  changed  because  Congress  has  provided  that  proceedings  for 
the  enforcement  of  the  statute  shall  take  the  form  of  civil  suits. 

U.  S.  V,  Louisville  & Nashville  R.  Co.,  157  Fed.  979  (1907). 


THIRTY-SIX  HOUR  REQUEST — DEFENSES — DEPOSITIONS.  27 


i.  * The  statute  (secs.  4386-4390  R.  S.)  is  highly  penal  and  must  be 
construed  as  strictly  as  if  it  were  a statute  creating  a criminal  ohense. 
Nothing  can  be  imported  by  construction  which  is  not  within  its 
spirit  and  letter. 

U.  S.  V.  St.  Louis  & San  Francisco  R.  Co.,  107  Fed.  870  (1901). 

THIRTY-SIX  HOUR  REQUEST. 

a.  Under  the  statute  the  shipper  or  person  in  charge  of  the  stock 
can  not  by  consent  or  agreement  relieve  the  company  from  the  penal- 
ties imposed  therein.  He  may,  however,  authorize  the  carrier  to 
extend  the  period  of  confinement  from  twenty-eight  to  thirty-six 
hours. 

U.  S.  V.  Soutliern  Pacific  Co.  (1909).  Circular  No.  20,  Office  of  the  Solicitor, 
Department  of  Agriculture. 

1).  The  statute  can  not  be  so  construed  as  to  permit  the  owner  of  live 
stock  to  file  a general  request  with  the  railroad  company,  applicable 
to  all  his  shipments  in  the  future,  with  a view  to  extending  the  time 
of  confinement  of  all  shipments  from  twenty-eight  to  thirty-six  hours. 
Such  a construction  would  nullify  the  general  intent  of  Congress  to 
limit  the  time  of  confinement  to  twenty-eight  hours.  There  should 
be  a separate  written  request  for  each  particular  shipment. 

U.  S.  V.  Pere  Marquette  R.  Co.,  171  Fed.  586  (1909).  Circular  No.  19, 
Office  of  the  Solicitor,  Department  of  Agriculture. 

DEFENSES. 

a.  Delivery  of  animals  by  a carrier  to  the  consignee  within  the 
limit  of  time  rescribed  by  the  statute  is  sufficient  to  relieve  the  de- 
fendant from  further  responsibility  under  the  act. 

U.  S.  V.  Southern  Pacific  Co.,  157  Fed.  459  (1907).  Circular  (unnumbered). 
Office  of  the  Solicitor,  Department  of  Agriculture. 

1).  Delivery  of  animals  by  the  defendant  to  a connecting  carrier 
within  the  limit  of  time  prescribed  by  the  statute  is  sufficient  to  relieve 
the  defendant  from  further  responsibility. 

U.  S.  V.  Southern  Pacific  Co.,  1.57  Fed.  459  (1907).  Circular  (unnumbered). 
Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  Circumstances  which  release  the  carrier  from  liability  under  the 
statute  are  provided  therein;  the  court  and  jury  have  no  right  to  find 
exceptions  outside  the  statute. 

U.  S.  V.  Colorado  & Southern  R.  Co.  (1908).  Circular  No.  7,  Office  of  the 
Solicitor,  Department  of  Agriculture. 

d.  *A  carrier  with  which  the  contract  for  shipment  of  live  stock  is 
made  and  which  of  itself  does  not  confine  the  animals  beyond  the 
period  prescribed  is  not  liable  for  the  penalty  imposed  by  sec.  4388 
K.  S.  because  connecting  carriers  violated  the  law  after  the  stock  had 
passed  out  of  the  control  of  the  first  carrier. 

U.  S.  V.  Louisville  & Nashville  R.  Co.,  18  Fed.  480  (1883). 

DEPOSITIONS. 

* The  plaintiff  may  follow  the  state  practice  in  taking  depositions. 

U.  S.  V.  Louisville  & Nashville  R.  Co.,  18  Fed.  480  (1883). 


28 


THE  TWENTY-EIGHT  HOUK  LAW  ANNOTATED. 


WRITS  OF  ERROR. 

a.  AAlien  an  action  under  the  Twenty-eight  Hour  Law  in  a district 
courts  triable  jiG'y  under  section  5G6  R.  S.,  is  by  consent  of  the 
parties  tried  to  the  court  without  a jury,  no  question  of  fact  or  law 
decided  upon  or  in  connection  with  the  trial  is  subject  to  reexamina- 
tion in  an  appellate  court.  Sections  649,  TOO,  R.  S.,  providing  for 
waiving  a jury  and  for  the  review  of  judgments  rendered  in  causes 
Avhen  there  is  such  waiver,  relate  exclusively  to  trials  in  circuit  courts. 

U.  S.  V.  St.  Louis,  Iron  Mountain  & Southern  R.  Co.,  169  Fed.  73.  (0.  C.  A., 

1909.) 

J).  The  United  States,  as  a matter  of  right,  ma}^  have  a writ  of  error 
to  review  a judgment  rendered  under  the  Twenty-eight  Hour  Law, 
for  the  action  to  recover  a penalty  under  the  law  is  civil. 

U.  S.  V.  New  York,  Chicago  & St.  Louis  R.  Co.,  168  Fed.  699.  (C.  C.  A., 

1909.)  Circular  No.  16,  Office  of  the  Solicitor,  Department  of  Agriculture. 

c.  In  an  action  to  recover  a penalty  under  the  Twenty-eight  Hour 
Law,  the  sufficiency  of  the  facts  found  to  support  the  judgment  are 
not  open  to  review  in  the  Circuit  Court  of  Appeals  in  the  absence  of 
a special  finding  in  the  defendant’s  favor.  The  special  finding  con- 
templated b}^  sections  649,  TOO,  R.  S.,  is  a specific  statement  of  those 
ultimate  facts  on  which  the  law  must  decide  the  rights  of  the  parties. 
It  corresponds  to  the  special  verdict  of  a jury,  is  equally  specific  and 
responsive  to  the  issues,  and  is  spread  upon  the  record  in  like  manner 
as  is  such  a i^erdict.  An  ojiinion  of  the  trial  judge,  setting  forth  the 
leasons  for  his  decision  in  an  action  under  the  Twenty-eight  Hour 
Law,  tried  by  a circuit  court  without  the  intervention  of  a jury,  can 
not  be  regarded  as  such  special  finding. 

U.  S.  V.  Sioux  City  Stock  Yards  Co.,  167  Fed.  126.  (C.  C.  A.,  1909.) 

d.  Congress  has  provided  that  the  remedy  shall  be  by  civil  action, 
and,  although  the  statute  is  penal,  the  GoA^ernment  is  entitled  to  have 
a judgment  in  such  action  reversed  by  Avrit  of  error. 

U.  S.  V.  Baltimore  & Ohio  Southwestern  R.  Co.,  159  Fed.  33.  (C.  C.  A., 

1908.)  Circular  No.  3,  Office  of  the  Solicitor,  Department  of  Agriculture. 
See  also  Montana  Central  R.  Co.,  164  Fed.  400.  Circular  No.  12,  Office 
of  the  Solicitor,  Department  of  Agriculture. 


o 


